Dissension in the Court: February 2011

The following relates to select decisions promulgated by the High Court in February 2011 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.

1.         No Retreat, No Surrender (Velasco vs. Carpio)

The Rome Statute

In December of 2000, the Philippines became a signatory to the Rome Statute, an international treaty which created the International Criminal Court (ICC), through which the International Criminal Court (ICC) was established with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.”  The serious crimes covered by the Rome Statute pertain to those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.  To date, however, the ratification by the Senate of the Rome Statute is still pending.

Included among the provisions of the Rome Statute are certain obligations imposed on parties to the treaty to surrender persons charged with covered crimes upon the request of the ICC.

The Non-Surrender Agreement

In May of 2003, through an Exchange of Notes, the Philippine government agreed to, and accepted the terms of, the United States proposed non-surrender bilateral agreement (NSA).  The NSA in pertinent part, provides that current or former Government officials, employees (including contractors), or military personnel or nationals of one Party that are present in the territory of the other Party shall not, absent the express consent of the first Party, be surrendered by the second Party to any international tribunal or to a third country for purposes of being surrendered to an international tribunal, unless it is to a UN Security Council tribunal.

The Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity

In December 2009, Republic Act No. 9851, otherwise known as the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity” (RA 9851) was enacted.  Section 17 of RA 9851, provides:

Section 17. Jurisdiction. –  x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime.  Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

Bayan Muna, a duly registered party-list group, filed a petition seeking the nullity of the NSA on several grounds among which is that the NSA contravenes the obligations of the Philippines under the Rome Statute and likewise contravenes the provisions on RA 9851.

In the majority decision, Justice Presbitero J. Velasco disposed of the arguments put forth by Bayan Muna and upheld the validity of the NSA.

The NSA, which is an executive agreement which, as opposed to a treaty, does not require Senate ratification, complements, rather than contradicts, the Rome Statute (even as the ponente points out that the binding effect of the Rome Statute on a party such as the Philippines that has signed, but not completed ratification, is less than on those countries that have both signed and ratified the same).  Extensive discussion was had to show how the Rome Statute, by its very terms, upholds the primary jurisdiction over so-called international crimes rests, at the first instance, with the state where the crime was committed and only secondarily, with the ICC.  On this basis, Justice Velasco holds that:

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between the Philippines, as party to the [NSA], and the ICC; or the idea of the Agreement substantially impairing the value of the [the Philippines’] undertaking under the Rome Statute.  Ignoring for a while the fact that the [the Philippines] signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the [the Philippines], over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

x     x     x

…For nothing in the provisions of the [NSA], in relation to the Rome Statute, tends to diminish the efficacy of the [Rome] Statute, let alone defeats the purpose of the ICC.  Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to perform an act that would violate some international agreement it has entered into.

Moreover, the majority observes that Article 90 of the Rome Statute recognizes the primacy of international agreements, such as the NSA, entered into between States, even when one of the States, such as the United States, is not a State-Party to the Rome Statute.

With respect to the assertion that the NSA contravenes RA 9851, Bayan Muna had argued that under Section 17 of RA 9851, if the Philippines does not prosecute a foreign national for violations of RA 9851, it is left with only two options: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is “pursuant to the applicable extradition laws and treaties.”  Justice Velasco writes that the view espoused by Bayan Muna asserts that “these options of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the United States, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an amendatory law.  In line with this scenario, the view strongly argues that the Agreement prevents the Philippines—without the consent of the US—from surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.  Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities.

The majority believes, however, that there is nothing in the NSA that runs counter to RA 9851.

Rather than reading the above quoted second paragraph of Section 17 of RA 9851 as requiring the Philippines to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons, the main decision views the options of the Philippines thereunder to be discretionary on account of the use of the word “may” in the statute and therefore, should be interpreted as being merely permissive.

The sole dissent was provided by Justice Antonio P. Carpio.  He took the view that the NSA, as an executive agreement, should be declared ineffective and unenforceable unless and until ratified by the Senate of the Philippines.

The dissenter stresses that an executive agreement, such as the NSA, “cannot amend or repeal a prior law, but must comply with State policy embodied in an existing municipal law. This also means that an executive agreement, which at the time of its execution complies with then existing law, is deemed amended or repealed by a subsequent law inconsistent with such executive agreement. Under no circumstance can a mere executive agreement prevail over a prior or subsequent law inconsistent with such executive agreement.

Justice Carpio believes that the NSA impermissibly contravenes RA 9851 which limits the options of the Philippines, in cases where a crime is under investigation by an international tribunal, only to surrendering the relevant persons to the international tribunal (which obligation is not subject to a consent requirement) or to the State of such person but only pursuant to an extradition law or a treaty.

As for the Rome Statute, he notes that even if the Senate has not yet ratified the Rome Statute, the same embodies generally accepted principles of international law enforceable in the Philippines under the Philippine Constitution pursuant to Section 2, Article II of the 1987 Philippine Constitution.

According to the dissenting opinion, “[i]t is a principle of international law that a person accused of genocide, war crimes and other crimes against humanity shall be prosecuted by the international community. A State where such a person may be found has the primary jurisdiction to prosecute such person, regardless of nationality and where the crime was committed. However, if a State does not exercise such primary jurisdiction, then such State has the obligation to turn over the accused to the international tribunal vested with jurisdiction to try such person.”  The NSA, per Justice Carpio, violates this surrender obligation.

(Bayan Muna, as represented by Rep. Satur Ocampo, et al. vs. Alberto Romulo, in his capacity as Executive Secretary, et al., February 1, 2011,  G.R. No. 159618. See dissenting opinion here.)

(author’s note:  It seems to this author that the point where the majority and dissenting opinions clash is essentially on a matter of statutory construction, with both sides reading the Rome Statute and RA 9851 is opposing manners.  This authors has long observed that there is probably a statutory construction rule that will support any view you wish to take so at the end of the day, it is actually a difficult to reconcile opposing interpretations.  That the United States wants to impose its own rules through a NSA rather than accede to the Rome Statute as did the 139 signatory countries (it surely must not be whimsical if 139 nations saw wisdom in the treaty) is, however, a different, albeit not any less difficult, matter.)

2.         Unconstitutional, Constitutional, Unconstitutional, Constitutional (Bersamin v. Carpio)

In the judicial version of the “She Loves Me, She Loves Me Not” game, The Supreme Court, speaking through Justice Lucas P. Bersamin, ruled as constitutional the 16 “Cityhood Laws” that the court earlier ruled to be unconstitutional prior to which it had upheld the same as constitutional after it had first invalidated these laws as being unconstitutional.

To recall, at issue in these cases was whether or not the 16 Cityhood Laws which declared certain municipalities as cities even as each such municipality did not achieve the P10,000,000 income standard set out in the Local Government Code violated Section 10, Article X of the Constitution which states that:

No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

and the equal protection clause of the Constitution.

In this latest decision, the majority noted that the bills that eventually became the 16 Cityhood Laws were pending before Republic Act No. 9009, which introduced amendments to the Local Government Code including the raising of the income requirement for cities from P20,000,000 to P100,000,000, was enacted into law.  The ponente pointed out that in the legislative debates relating to Republic Act No. 9009, it was emphasized by that law’s sponsor that the pending bills for cityhood should not be affected by the proposed change in the income standard.  In light of this, the majority took the position that the clear legislative intent was that the 16 Cityhood Laws were from the beginning intended to constitute exemptions to the higher income requirement that was enshrined in Republic Act No. 9009 and that the exemption clauses found in the individual Cityhood Laws are the express articulation of that intent.

That Congress is empowered to amend the Local Government Code is undisputable.

Undeniably, R.A. No. 9009 amended the [Local Government Code].  But it is also true that, in effect, the Cityhood Laws amended R.A. No. 9009 through the exemption clauses found therein.  Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the [Local Government Code] itself.  For this reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained and stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in the [Local Government Code].

Thus, according to the majority, the Cityhood Laws are compliant with the criteria established in the Local Government Code as required by Section 10, Article X of the Constitution.

With respect to the assertion that the Cityhood Laws violates the equal protection clause of the Constitution given that there is no substantial distinction between the fact that the bills relating to the Cityhood Laws were pending during the enactment of Republic Act No, 9009 and other bills that were not so pending at that time, Justice Bersamin concluded that “[u]pon more profound reflection and deliberation, we declare that there was valid classification, and the Cityhood Laws do not violate the equal protection clause.”

Justice Bersamin chides the above view that there is no substantial distinction because the substantial distinction should not be gauged merely on the whether or not a bill was pending but rather on the capacity and viability of respondent municipalities to become component cities of their respective provinces.  Said the ponente: “Congress, by enacting the Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the State’s partners in accelerating economic growth and development in the provincial regions, which is the very thrust of the [Local Government Code], manifested by the pendency of their cityhood bills during the 11th Congress and their relentless pursuit for cityhood up to the present.  Truly, the urgent need to become a component city arose way back in the 11th Congress, and such condition continues to exist.

Justice Antonio P. Carpio, who penned the decision that this new ruling overturned, issued the sole dissenting opinion.  In his dissent, he reiterated that the Cityhood Laws violated Section 10, Article X of the Constitution because those statutes effectively created cities not in accordance with the criteria set out in the Local Government Code.

The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code. The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws.

Justice Carpio thereafter reiterated his position that there is no substantial distinction between municipalities with pending cityhood bills during the 11th Congress and municipalities that did not have pending bills and that the mere pendency of a cityhood bill in the 11th Congress is not a substantial distinction that would satisfy the equal protection clause. Such “pendency” is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

In addition, the dissenter expressed that limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. “Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

(League of Cities of the Phil. etc., et al. vs. COMELEC, et al./League of Cities of the Phil. etc., et al. vs. COMELEC, et al./League of Cities of the Phil. etc., et al. vs. COMELEC, et al. February 15, 2011, G.R. No. 176951/G.R. No. 177499/G.R. No. 178056.  See dissenting opinion here.)

(author’s note: For some strange reason, this author cannot seem to make up his mind as to his position in this case.)

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